[10-460] The relevance of an offender’s mental condition
The fact that an offender was, or is, suffering from a mental disorder or disability either at the time of the commission of the offence or at the time of sentencing may be taken into account at sentencing: R v Anderson [1981] VR 155; (1980) 2 A Crim R 379. In summary proceedings, it may be relevant to a s 32 application under the Mental Health (Forensic Provisions) Act 1990 (see [90-050]).
An offender’s mental condition can have the effect of reducing a person’s moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This is especially so where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].
The High Court explained the rationale for the principle in Muldrock v The Queen at [53]:
One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, [in R v Mooney in a passage that has been frequently cited, said this [(unrep, 21/6/78, Vic CCA) at p 5]:
“General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.”
The High Court continued at [54]:
The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community. [Footnotes excluded.]
Sentencing an offender who suffers from a mental disorder commonly calls for a “sensitive discretionary decision”: R v Engert (1995) 84 A Crim R 67 at 67. This involves the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 488. The purposes overlap and often point in different directions. It is therefore erroneous in principle to approach sentencing, as Gleeson CJ put it in R v Engert at 68:
… as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
Some of the types of mental conditions that offenders can have are described in Intellectual Disability and Rights Service, “Step by Step Guide to Making a Section 32 Application for a Person with an Intellectual Disability”, October 2011, accessed 11 April 2012. The broad term “developmental disability” is used in the publication to cover “disability categories such as: intellectual disability, cerebral palsy, epilepsy, autism (including Asperger disorder) and some neurological conditions (at p 8, referencing Errol *advertiser censored*, An Introduction to Intellectual Disability in Australia, 3rd edn, Australian Institute on Intellectual Disability, 1998). Mental condition also includes a disability of mind resulting from acquired brain injury (at p 11).
http://www.judcom.nsw.gov.au/publications/benchbks/sentencing/subjective_matters.html
